Legislative Update 
March 12, 2003

 State Budget and Medicaid

Hundreds of people turned out this week to testify in opposition to the Governor’s Budget, House Bill 1-A.  Leslie Melby testified in opposition to the proposed Medicaid cuts in Governor Benson's proposed budget, HB 1-A.  The impact on hospitals would be far worse than we had expected – at least $20 million cuts each year of the biennium.

Our testimony recommends that Medicaid Disproportionate Share Hospital money be used to close the gap.  Read the testimony.

Medical and Hospital Liability Insurance

Great news!  The House Judiciary Committee voted 16 to 1 to kill HB 290, “relative to the burden of proof in medical injury cases,” which would have incorporated the Loss of Opportunity doctrine into New Hampshire statute.  With the help of our hospitals, we’re making great progress in keeping the Loss of Opportunity doctrine out of the statute, but there’s lots more work ahead with the Loss of Opportunity bill we support in the Senate, Senate Bill 119, scheduled to be heard on April 1st.  The HB 290 supporters are going to work very hard to kill SB 119 that specifically rejects loss of opportunity.

Once again, the Loss of Opportunity doctrine, if not specifically removed from the law (as proposed by Senate Bill 119), allows patients to recover compensation for a new type of "injury" --  the loss of opportunity for a better outcome.  Under traditional legal principles, a plaintiff could recover damages only if the plaintiff could prove through expert testimony that the plaintiff's medical provider was negligent and proximately caused a tangible injury, such as premature death, disfigurement, loss of some bodily function or some other identifiable physical injury.  The loss of opportunity doctrine expands the definition of "injury," allowing for recovery of damages if the plaintiff can prove merely that the patient would have "done better" if the patient had received proper care.  Thus, in a loss of opportunity case, the injury is the difference between the chance the patient would have had if there were no negligence, as compared to the reduced chance the patient had because of the negligence. 

 Certificate of Need

This week the House of Representatives will vote on HB 788, An Act Transferring the Duties of the Health Services Planning and Review Board.  NHHA and our member hospitals are working to kill HB 788 because it eliminates Certificate of Need (CON) review for outpatient services only, thereby establishing an uneven playing field that unfairly discriminates against community hospitals.  HB 788 undermines hospitals’ economic viability by siphoning away resources from hospital settings to profit-driven niche providers. More costs will be shifted to private payers, driving up health insurance premiums that will be borne by businesses and their employees. Access to health care will be compromised in a non-regulated health care market.  Operating by itself, the health care market will not guarantee that all health care providers will ensure access to care to all NH residents.  New Hampshire’s CON statute presently provides our only opportunity to ensure access before they are allowed to develop costly new private health care services.

The CON bill NHHA supports was heard in the Senate last week. Senate Bill 163 “Relative to the procedures of the Health Services Planning and Review Board,” would retain the CON statute in its current form with several improvement s including: the treatment of operating leases for equipment the same as capital leases. SB 163 also provides a look-back provision to ensure that applicants have met the conditions of previous CONs. Some of the lookback provision language still needs tightening.